becoming a super sleuth: conducting effective workplace investigations · 2017-09-14 · • topic...

Becoming A Super Sleuth: Conducting Effective Workplace Investigations

David P. McKinney, AttorneyOgletree, Deakins, Nash, Smoak & Stewart

Why Are We Here?

• Topic of workplace investigations has become an increasingly important aspect of employee relations, employee engagement, and employment law

• Best practices and guiding principles• Our main responsibility:

• To take reasonable steps to PREVENT wrongful behavior and to CORRECT behavior that is found to be wrong

• An investigation provides a fair and impartial process for the parties to share information and for the investigator to reach well-reasoned factual conclusions

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Business Reasonsto Investigate

• Create a culture of reporting problems and management responding (HR responding)

• Good employee relations• Misconduct decreases productivity• Follow company complaint or grievance procedures• Identify causes of incident and reduce/eliminate

occurrences in future• Third-party regulatory oversight• Risk of litigation

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Other Reasons to Investigate(not exhaustive)

• Compliance• Policy Violations• Anti-discrimination and civil rights laws• Anti-retaliation and whistleblower laws• OSHA and state workplace safety laws• FLSA and state wage-and-hour laws• Local ordinances• Contractual obligations• Potential defense to liability

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The Pyramid of Bad Behavior™

Level 3Unlawful, unethical,

immoral behavior

Level 2Violation of internal policy or

procedure

Level 1Inappropriate, immature, unprofessional

behavior or bad management style5

Laying the Foundation• Maintain a culture that encourages complaints and

reporting• Take all complaints seriously• Respond quickly• Follow the company’s intake procedures• Do not ignore the possibility of the simple solution• Company Values help guide decision making

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Conducting Successful Workplace Investigations

Stage 1: Intake

Stage 2: Planning

Stage 3: Interviews and

Document Review

Stage 4: Analysis of Evidence Collected

Stage 5: Conclusion

Stage 6: Remedial Measures

Stage 7: Recordkeeping

Stage 8: Close-out, follow-up,

and getting back on track

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Stage 1: Intake

How to make initial assessments

regarding the nature of the allegations

Determine the scope of the

investigation that needs to be conducted

Analyzing whether need to suggest

temporary remedial actions

Involves:

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Stage 1: IntakeWhen does a complaint

require a comprehensive investigation?

Allegations of harassment (discrimination or

retaliation)

Corporate wrongdoing, workplace violence

Behavior contrary to company policies or practices

(EEO & Code of Conduct)

Illegal, unethical, immoral9

Stage 1: Intake

The

Com

plai

ntWho is making

complaint?

Who likely needs to be interviewed or

informed?

What documents should you

request/secure?

What is the initial scope?

Who will conduct the investigation?

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Stage 1: IntakeHow quickly should you begin/end investigation?

General Rule: Contact complainant within 48 hours of complaint. Complete investigation within 5 – 10

business days of contacting complainant.Factors that may impact timing of investigation:

Number and availability of relevant witnesses who must be interviewed

Whether the complainant has retained an attorney

Number of documents that must be reviewed/analyzed 11

Set expectations with Complainant as to approximately how long investigation will take*

Stage 1: Intake

You should provide big picture advice on remedial measures, but include Legal as needed

The responsible business leader should make the ultimate decision based on business needs with the support of HR and Legal (when appropriate)

Remedial steps should be carefully tailored to prevent an adverse effect on the alleged victim to prevent future claim of retaliation

Consider reviewing policy with all after the interview

Immediate remedial measures?

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Stage 1: IntakeWho should investigate ?

Internal Personnel:Advantages: Know the company, players, policies, culture; ability to implement remedial measuresDisadvantages: Perception of bias, inability to dedicate time, internal politics

External Investigator:Advantages: Timing, no bias, expertise, experience, Disadvantages: Must learn nuances of parties, company; need for oversight; cost

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*** Are you the correct person to investigate? Does the complaint involve peer, executive, or you?

Stage 1: IntakeWhen to hire (or strongly consider hiring)

an outside investigator:No one is trained to conduct this type of an investigation

This is a repeat complainer or a repeat alleged offender and you need new eyes

Conflict or perceived conflict

The complainant has already filed an administrative complaint or lawsuit

The complainant is already represented by counsel

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Investigator Qualities• Ability to listen well• Ability to make witnesses feel more comfortable• Sensitivity to the witnesses’ discomfort• Good analytical skills• Well versed in company and legal policies• Ability to anticipate future legal or business issues• Writing skills (depending on type of investigation)• Ability to testify persuasively if necessary, including

past experience depending on allegations

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Stage 1: IntakeCompanies often receive complaints in the

following situations:

• At the employee’s exit interview

• Business conditions: poor sales results

• After a reorganization or other major change

• After receiving training

• After an employee is given a new job, moves to different location, or starts working with a new supervisor

• Personal factors not associated with the workplace16

Stage 2: Planning

Define the scope of the investigation

Prepare a tentativewitness list

Check work schedules for witnesses to

determine order

Determine whether the investigation will

require external resources

Decide what documents and evidence need to be collected and reviewed

Assist business leader in determining if immediate

remedial measures are necessary

Inform all parties who need to know

Provide accused with fair notice of

allegations and opportunity to offer evidence in defense

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Stage 3: Interviews and Documents - Initial Issues

Notes? Handwritten? Typed?Ensure notes are taken contemporaneouslyAudio recording?

Witness review notes and sign statements indicating accuracy?

Investigators typically use the method that most accurately records the details of the interview while

maintaining a comfortable environment for the witness to provide complete and honest answers

---------------------------With few exceptions, use handwritten notes

What are the best practices for documenting interview?

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Stage 3: Interviews and Documents - Objectivity

Ignoring complaints because you don’t believe allegations at the outset

Steering investigation in a particular direction because you know desired outcome

Turning the investigation into a witch hunt

Ways in which objectivity becomes an issue:

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Stage 3: Interviews and Documents - Beginning the Interviews

Provide necessary information about the scope of your work

Remind witness of retaliation prohibition

Confidentiality issues – yours and theirs

Reiterate importance of honesty, completeness

Explain the investigation process

Starting Points

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Stage 3: Interviews and Documents - Create Comfort

Begin interview by asking employee about their own

background with the company and general background of their relationship with the

accused

Many witnesses will be worried about being involved

or identified; do not make any promises that they will

not be identified

Go with the flow of the interview; make sure you

cover everything but don’t be rigid about following your

outline

While you want to keep the interview as focused as

possible, don’t be afraid to let things go temporarily off

topic, particularly if it keeps the employee talking

General tips for making employee feel comfortable:

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Stage 3: Interviews and Documents - Techniques

Twice through:general (no notes)

specific (notes)Funnel method

There is no “bad” information in an

investigation

Ask open-ended questions: Invite

a narrative This is not a cross

examination

Interview Techniques

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Stage 3: Interviews and Documents - Questions

Introductory statements and

questions

Ask questions about experience with the company: dates of

employment, positions, duties, information about

work environment

Ask each witness questions that will establish how

much knowledge they may have about allegations

How much interaction they had with the main parties?

Where is their work station in relation to the main

parties?

Do they work the same days/shifts?

These questions will give you an

idea of the witness’s style and demeanor

General tips for interview:

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Stage 3: Interviews and Documents - Questions

Use techniques to refresh a witness’s recollection

Important for obtaining specifics about dates, times

Use calendars, important marker points/events

Use reflective listening

To make sure you accurately record the information provided to you by each witness, repeat back, in your own words, the important point(s)

from each interview

General tips for interview:

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Stage 3: Interviews and Documents - Notes

Avoid interpretations, but document non-verbals

Write down direct quotes

Put events in order that makes most sense - chronological or topical

Write notes to yourself regarding follow-up questions

Pre-populate introduction, conclusion, and known questions

When taking notes during an interview:

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Stage 3: Interviews and Documents - Additional Tips

Ask witness to put him/herself back in the time/place

“Tell me everything you can remember”

Ask for a drawing

Varied recall: tell story reverse order

Ask for clarification –particularly if there are inconsistencies

Go over notes and summarize before ending interview 26

Stage 3: Interviews and Documents – Data Sources

Emails/ text messages

Telephone and

computer records

Notes/ diaries Letters Performance

evaluations

Gifts/ cards Discipline memos

Employee handbook

Company policy and procedure

Legal complaints

Personnel file

documents

Time sheets/

schedulesAcknowledgement

formsMemos from

HRTraining

files

Time clock/ computer log

in records

Cash register receipts or

recordsCalendars Loss reports Social media

Possible documents to review:

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Stage 3: Interviews and Document s – Interview Order and Number

No “perfect” order, but consider interviewing the Complainant first, then obvious witnesses (i.e.,

supervisor(s)), then the accused, then additional witnesses identified by the complainant or accused

Complainant, Obvious, Accused, Witnesses, Repeat

If possible and practicable, interview all witnesses identified by the complainant and/or the accused

Good to follow-up with complainant, even if told them to contact you 28

Stage 3: Interviews and Document s - Complainant Interview

In addition to general information regarding limits of confidentiality, complainant must understand that in

order to conduct a fair investigation, the accused must be informed of the allegations against him/her

Interview with the complainant: confidentiality

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Stage 3: Interviews and Document s - Complainant Interview

Ask them for documents and names of witnesses, but let them know you will use your judgment in deciding interviewees.

Discuss with legal if any questions.

Interview with the complainant: opportunity to follow up

Let them know they can contact you if they have other information or find additional documents

Date and take notes of other follow-up questions

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Stage 3: Interviews and Documents - Complainant Interview

Interview with the complainant: retaliation

Remind them that the company does not tolerate any retaliation

Inform them that they should immediately report any retaliatory conduct

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Desired outcome

Investigators ask the complainant how they want to see the situation resolved

Complainant might say he/she wants an apology or wants the accused terminated

This gives you an idea of the complainant’s motives

No guarantee that their desired outcome will be the outcome you choose

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Additional tips for creating comfort

Do not react negatively or indicate you are judging, disbelieving

Close interview with reminders: retaliation, might need to follow up, assurances that s/he will be kept apprised of process/timing

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Stage 3: Interviews and Documents - Accused Interview

Opportunity to present their side of the story

Provide accused with enough details about the allegations to allow them to present their side of the

story and defend themselves

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Stage 3: Interviews and Document s – Other Witnesses

First-hand knowledge

Consider limiting questions to those involving witnesses’ first hand knowledge (rather than rumor)

Talk to witnesses who may have seen the complainant immediately after the alleged incident or to whom reported the bad acts

They may be helpful in your assessment of credibility

35“Obvious” witnesses

Stage 3: Interviews and Documents- Accused Interview

Do not accuse

• Do not ask questions/ make remarks about your personal beliefs and feelings

• Do not make judgments about actions/behavior

• Explain that they should tell you everything they know

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Full cooperation

Company expects him/her to cooperate

He/she must be honest and open

Make sure he/she understands company policies and procedures

Review any training received covering relevant policies

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Complainant’s motive

If accused denies some or all of the allegations:

Ask to describe relationship with complainant

Ask what they believe is motivating the complainant to say these things

Ask whether something they said/ did may have been misinterpreted/ misconstrued by the complainant

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Stage 3: Interviews and Documents – Accused Interview

After the interview

• Assure that you will follow up with results after investigation

• Remind that they may not engage in retaliation or encourage anyone to do so

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Stage 3: Interviews and Documents – Other Witnesses

The process

Who do you interview?

Alleged eye witnesses or “obvious” to have information

Witnesses identified by parties

Explain the process

Explain process, your role, and purpose of meeting

Provide as much detail (names, allegations) as necessary, but not too

much information

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Stage 3: Interviews and Documents – Other Witnesses

Narrow scope of investigation

Will cover allegations raised

Make sure they understand job is not in jeopardy and no negative consequences

Interviews of third parties; be cautious 41

Stage 3: Interviews and Documents – Special Witnesses

Unique considerations

Enlisting help from IT, security, contractors,

vendors, clients, former employees

Briefly explain that an investigation is being

conducted

Provide only necessary information

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Stage 3: Interviews and Documents- Additional Work

Visiting the workplace/site of incident when key to the investigation

Enlist assistance of Regional Managers as appropriate, depending on location, issue to schedule interview(s)

Site visit may be critical to determine whether the various versions of the stories you hear are credible (if that is an issue in the investigation)

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Stage 4: Analysis and Conclusions

Common mistakes:

• Failure to reach a conclusion

• Reaching a legal conclusion

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Stage 4: Analysis and Conclusions

You will be and should be making determinations about credibility and motive

Determinations should be based on objective evidence rather than solely on “gut feeling” or only on witness demeanor, do not speculate

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Stage 4: AnalysisCredibility determination:

• Is the story inherently believable?

• What did others say about the witnesses?

• Is there corroboration to the story?

• Are there contradictions to the story?

• Has the witness lied in other areas of the interview?

• Does the witness have a history of this type of behavior?

• What does the documentary evidence say?46

Stage 4: Analysis

Motive determination:

• Does this person have a reason or incentive to lie?

• Do the individuals involved have some type of history?

• Look at timing of the complaint and the level of cooperation from the complainant and the accused

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You Must Be and Stay ObjectiveEven if the

employee had made prior complaints

Cannot form opinions before

the investigation is

complete

Cannot place judgment on

personal feelings or prior

dealings

Never make assumptions

unless you have facts to back

you up

Be cautious when choosing the investigator

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Stage 5: Report the Findings

Who is your audience?

Be precise, but provide enough detail to support the conclusion reached

Keep confidentiality in mind

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Stage 5: Report the Findings

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Sufficient to be able to explain:

How investigation conducted

Scope and Facts

Analysis, including credibility determinations

Conclusion/Findings


Three rules of thumb when

deciding corrective action for accused

(1) Discipline should be commensurate with level

or severity of wrongdoing

(2) Discipline should be tailored to prevent

wrongful behavior from reoccurring

(3) Consistent with past practice

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Who should be involved in the decision making process for discipline?

Could involve policy changes, training, possible corrective measures

Need to be consistent with past similar actions and understand how action could create new precedent

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Stage 6: Remedial MeasuresWhat options do you have for corrective action against accused

if potential wrongdoing is found?

Increased training/

monitoring

Verbal, written,

final warning

Discharge/ termination

Transfer/ reassignment

Suspension Demotion Loss of bonus

Wage reduction

Ineligibility for pay raise

Allow resignation

Recommended counseling

Paid/ unpaid leave

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Stage 6: Remedial MeasuresPossible remedial options for complainant:

Setting fair performance expectations and providing resources

Review personnel file to determine whether any documents related to wrongdoing need to be reassessed or removed

Reinstatement of position, pay, benefits

Apology from wrongdoer

Restore any lost time (leave, vacation, sick time)54


Other employees may need to be coached or disciplined for:

Retaliating against complainant

Failing to report – Management only

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Stage 7: RecordkeepingKeep all documents relevant to an investigation in a separate confidential file

File should include intake documents, written complaints, notes, emails, letters, texts, telephone records, documents provided by witnesses

Ensure the file is complete; include all documents/communication and notes

These documents should not go into the complainant’s personnel files; only disciplinary documents into accused’s file

Files may be discoverable if the matter should proceed to administrative agency action or litigation

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Stage 8: Close-out

Most common mistakes:

Failure to provide information about the investigation, especially the result, to

complainant and accused

Failure to monitor workplace, provide resources to get things back to normal

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Stage 8: Close-out, Follow-up, and Getting Back on Track

Follow-up:

Who should monitor the situation?

How quickly or often should you monitor the situation?

If there has been a reassignment, make sure everything is going well in the new position 58


Document all your meetings, but keep it simple

If you find retaliation, correct and discipline immediately

Remember that retaliation can be overt or subtle

Remember retaliation possible even after employee

leaves the company59


Examples of retaliation:

A supervisor giving the complainant

different or worse assignments

Co-workers who shun the

complainant

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Should you consider additional training?

The investigation will uncover the need to conduct additional employee and/or management

training on certain subjects

Discrimination, harassment, reporting, wrongdoing, retaliation

Conduct training in a positive way

Establish training timeline 61

Now let’s practice….

Interviewing the complainant

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Next steps….

Investigation preparationand

Witness interview

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Just when you thought you knew what was going on…

Second witness interview

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The other side of the story…

Interviewing the accused

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Drum roll, please…

Investigator on the stand

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20 Investigation Rules1. Develop effective complaint mechanisms2. Take all complaints seriously3. Institute temporary measures if needed4. Decide investigator5. Plan investigation order, witnesses, questions6. Ask questions twice –general, specific7. Utilize funnel technique8. Remain objective or find someone else9. Avoid jumping to a conclusion too soon10. Consistent introduction and conclusion 72

20 Investigation Rules (cont.)11. Speak to witnesses identified12. But consider not speaking to outsiders13. Have and remind witnesses of retaliation policy14. Take notes 15. Make a decision/recommendation16. Tell key people of the result17. Document conclusion18. Avoid legal conclusions – “harassment”19. Follow-up after implementation20.Look for process improvement opportunities

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Questions

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Thank You!

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David P. McKinneyOgletree Deakins

225 South Sixth Street, Suite 1800Minneapolis, MN 55402

[email protected]